Citation Nr: 21039994 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 19-00 047A DATE: July 2, 2021 ORDER Entitlement to an evaluation of 80 percent, but no higher, from July 1, 2009, but no earlier to February 13, 2020 for nonproliferative diabetic retinopathy and glaucoma is granted. Entitlement to an evaluation in excess of 90 percent from February 13, 2020 for nonproliferative diabetic retinopathy and glaucoma is denied. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(k), from July 1, 2009 through September 14, 2009, for blindness in one eye having light perception only, is granted. Entitlement to a higher compensation than SMC pursuant to 38 U.S.C. § 1114 is denied. FINDINGS OF FACT 1. For the period between July 1, 2009 and February 13, 2020, the Veteran had no more than light perception in the right eye and corrected visual acuity for distance 20/70, at worst, for the left eye with remaining field of 20 degrees. 2. For the period since February 13, 2020, the Veteran had no more than light perception in the right eye and corrected visual acuity for distance 20/40 for the left eye with pseudophakia with remaining field of 15 degrees. 3. For the period after July 1, 2009, the Veteran has essentially demonstrated blindness in the right eye. 4. The Veteran's left eye does not have visual acuity of 5/200 or less, light perception only, without light perception, or otherwise blind for the entire appeal period; and the evidence preponderates against finding that the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. A 100 percent schedular rating is assigned for all service connected disabilities, individual unemployability has been denied. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor the criteria for entitlement to an evaluation of 80 percent, but no higher, from July 1, 2009, but no earlier, to February 13, 2020 for nonproliferative diabetic retinopathy and glaucoma have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.75-4.79, Diagnostic Code 6040. 2. The criteria for entitlement to an evaluation in excess of 90 percent from February 13, 2020 for nonproliferative diabetic retinopathy and glaucoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.75-4.79, Diagnostic Code 6040. 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to SMC based on blindness in one eye have been met, effective July 1, 2009. 38 C.F.R. § 1114 (k). 4. The criteria for entitlement to a higher compensation than SMC under 38 U.S.C. § 1114 have not been met. 38 U.S.C. §§ 1114 (l), (m), (n); (s) 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to February 1969. In May 2020, the Board denied entitlement to an effective date earlier than June 15, 2010 for the award of a 70 percent evaluation for mild nonproliferative diabetic retinopathy and glaucoma and entitlement to an effective date earlier than September 14, 2009 for the award of SMC under 38 U.S.C. § 1114(k) based on loss of use or blindness in one eye having light perception only. The Veteran appealed the denial of an earlier effective date for a 70 percent evaluation for the bilateral eye disability to the Court of Appeals for Veterans Claims (CAVC); and in March 2021, the Secretary and the Veteran filed a Joint Motion for Partial Remand (JMPR) which was granted by the CAVC in a March 2021 Order. The parties to the JMPR determined that the Board failed to address a relevant provision in the VA Adjudication Procedures Manual (M21-1) and to consider potentially relevant evidence such as a September 2009 treatment note. The case was remanded for the Board to readjudicate the issue accordingly. The Board previously remanded the rest of the issues for further development in January 2020 and May 2020. The case has now been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is requesting higher ratings for the already established service-connected eye disability. As such, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran's claim for an increased rating for diabetic retinopathy and loss of vision in the right eye was received on June 15, 2010. Thus, the Board looks to the evidence since June 2009, one year prior to the date of claim. 1. Increased rating for diabetic retinopathy and glaucoma The Veteran's nonproliferative diabetic retinopathy and glaucoma have been rated as 70 percent from June 15, 2010, 80 percent from July 2, 2015, and 90 percent from February 13, 2020 under Diagnostic Code 6040-6064. During the pendency of the appeal, the Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye has been amended. The amendment went into effect on May 13, 2018. 83 Fed. Reg. 15316 (Apr. 10, 2018). Accordingly, both versions of the ratings schedule are applicable to this claim. VA will consider the claim in light of both versions, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendment. Importantly, the amendment added Diagnostic Code 6040 for diabetic retinopathy. Prior to the amendment, the Veteran's retinopathy was evaluated under Diagnostic Code 6006, retinopathy or maculopathy. Diagnostic Code 6006 prior to the amendment instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009, which instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under Diagnostic Code 6040, effective May 2018, the disability would be rated under the General Rating Formula for Diseases of the Eye, as well. The revised General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Higher ratings are also available for greater frequency of incapacitation but are not pertinent to the facts of this appeal. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required in the May 2018 version. There are otherwise no substantive changes to how those types of visual impairment are rated in any version of the regulations. During the entire appeal period, the evidence does not indicate that the Veteran had an incapacitating episode under either version of the criteria. Thus, the Board considers visual impairment due to his service-connected eye disability. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Impaired visual acuity is rated under diagnostic codes 6061-6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impairment of visual fields are rated under Diagnostic Code 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. §§ 4.77, 4.79. Impaired muscle function is rated under Diagnostic Code 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. Here, the evidence shows that the Veteran has never had impaired muscle function due to service-connected eye disability, to include diplopia, during the entire appeal period. Rather, the evidence demonstrates that the Veteran's service-connected eye disability resulted in impairment of visual acuity and visual field as described below. A June 2009 VA treatment record indicates that the Veteran complained visual loss in the right eye in the past 3 days prior to the visit. It is noted that the Veteran had proliferative diabetic retinopathy with vitreous hemorrhage, status post vitrectomy of the right eye in November 2008 and status post laser indirect ophthalmoscopy of the left eye in July 2008. The visual acuity was "hand motion" in the right eye and 20/200 in the left eye. He was assessed with retinal detachment of the right eye with poor prognosis due to diabetic retinopathy. Vitreous hemorrhage of the left eye was resolved with stable findings. The presence of cataract was noted. A September 2009 VA treatment record reports that the Veteran's uncorrected visual acuity was "no light perception" in the right eye and 20/200 (20/50 with pinhole) in the left eye. A July 2010 VA examination found that the corrected visual acuity for distance was no light perception in the right eye and 20/25-1 in the left eye. It referred to an August 2007 VA examination where a diagnosis of refractive error, bilateral senile cataracts with good corrected visual acuity, moderate nonproliferative diabetic retinopathy, and glaucoma. This prior examination also provided an opinion that the loss of central vision was caused by diabetes and the loss of peripheral vision was caused by glaucoma, which in turn was found related to diabetes. The physical examination found no diplopia and visual field by confrontation was moderately constricted in the left eye. The Goldmann perimetry was conducted at the examination and it revealed moderate peripheral constriction with approximately 23 degrees of central visual field remaining in the left eye; with the right eye, the Veteran was not able to see the fixation target to measure visual field. The examiner noted a prior August 2007 Goldmann result, which had revealed mild to moderate peripheral constriction with approximately 29 degrees of central visual field remaining in each eye. The diagnoses provided during the July 2010 examination were refractive error of the left eye, right eye total blindness, right eye mature cataract with posterior synechiae, iris bombe, and neovascularization of the iris, left eye combined senile cataract, right eye old retinal detachment by history, right eye open angle glaucoma, and proliferative diabetic retinopathy of the left eye. The examiner opined that the loss of vision in the right eye was caused by diabetes and the loss of left eye central vision was caused by combined senile cataract and diabetes. Moreover, the loss of left eye peripheral vision was caused by glaucoma, which was determined related to diabetes. A July 2010 VA treatment record reflects a diagnosis of legal blindness secondary to advanced proliferative diabetic retinopathy and decreased visual acuity and visual loss to less than 20 degrees in the functional eye. The Veteran was referred to a low vision rehabilitation program. A September 2010 low vision functional evaluation report indicates that the Veteran was able to see newspaper headlines, 1M print, a watch, a wall clock, furniture, doorways/hallways, paper currency, coins, phone dial, handwriting of approximately 2.5M print, and TV. He reported going to shopping with a family member, but he did not walk long distance. He was not able to see checks, but he was able to see all colors. The visual acuity for distance was no light perception in the right eye and 20/30 in the left eye, with 20/30 in both eyes (noted from a July 2010 VA treatment record) with remaining visual field of less than 20 degrees in the left eye. The result was same in the full room illumination. He complained of getting fatigue and pain when he was trying to read for long period of time. A January 2011 VA treatment record indicates that the Veteran sought emergency care due to blurry vision in the left eye and having floaters for one day. The corrected visual acuity was no light perception in the right eye and 20/70 in the left eye. In a January 2011 notice of disagreement, the Veteran reported that he suffered hemorrhage in the left eye and could not drive due to vision loss. A February 2011 VA treatment record indicates that the corrected visual acuity was no light perception in the right eye and 20/60 in the left eye. Vitreous hemorrhage in the left eye, status post laser indirect ophthalmoscopes, June 8, 2010 was noted. A November 2011 VA treatment record indicates that the corrected visual acuity was no light perception in the right eye and 20/70 in the left eye. A July 2015 VA examination reflects a diagnosis of diabetic retinopathy, senile cataracts, and blindness in the right eye. The Veteran complained of vision loss in the right eye in the past 8 years ago. The Veteran's vision in the right eye was limited to no more than light perception only. He was not able to recognize test letters at 1 foot or closer in the right eye. He had visual acuity of 20/200 or less in the better eye with use of a correcting lens based on visual acuity loss. The examiner stated that the Veteran was unable to work due to total blindness in the right eye due to retinal detachment secondary to diabetic retinopathy and poor best corrected visual acuity on this left eye (20/80), which was not improved by corrective glasses. A July 2015 Goldmann visual field test chart indicates that the remaining visual field in the left eye was approximately 20 degrees, more than 15 degrees and less than 30 degrees. The Veteran was not able to fixate on the target with the right eye for the visual field test. In February 2017, the Veteran underwent a cataract surgery in the left eye with posterior chamber intraocular lenses (pseudophakia). Since this surgery, the Veteran's corrected visual acuity in the left eye improved and remained around 20/50 or better. Most recently, the Veteran underwent a VA examination in February 2020. The corrected visual acuity for distance was 5/200 or worse (no light perception) in the right eye and 20/40 in the left eye. The remaining visual field in the left eye was the average of 15 degrees. The examiner stated that the Veteran had no depth perception and that he was unable to walk, drive, or work since having a cerebral vascular accident. The examiner noted that the Veteran was markedly limited in his daily activities due to complete loss of visual acuity in the right eye and severe visual field constriction in the left eye, though correctable to 20/40-1. Based on a review of the evidence during the appeal period summarized above, the Board finds that the Veteran's service-connected eye disability warrants an 80 percent rating from July 1, 2009 to July 2, 2015 and continuation of that rating until February 13, 2020, for the following reasons. As of July 1, 2009, the Veteran had no light perception in the right eye. For the period prior to July 2, 2015, the Veteran's corrected visual acuity for distance for the left eye ranged from 20/25 to 20/70 and he had visual field defect in the left eye with remaining visual field of less than 20 degrees. After July 2, 2015, the Veteran's right eye continued to have no light perception in the right eye and the best corrected visual acuity for distance for the left eye was 20/80 with remaining visual field of more than 15 degrees and less than 30 degrees. In February 2017, the Veteran underwent a cataract surgery for the left eye, which improved his corrected visual acuity in the left eye to be 20/40, but the remaining visual field had worsened to 15 degrees, as found in the February 2020 VA examination. Thus, applying the table of impairment of visual acuity and visual field, the Board finds that an evaluation of 80 percent is warranted for the entire appeal period. For the period between July 1, 2009 and February 8, 2017, 50 percent is assigned for impairment of visual acuity, corresponding to no more than light perception in the right eye and 20/70 for the left eye under Diagnostic Code 6064. Moreover, during this period, 60 percent is assigned for impairment of visual field, corresponding to remaining field of 20 degrees in the left eye with no light perception in the right eye under Diagnostic Codes 6080 and 6064. Combining these ratings under 38 C.F.R. § 4.77 according to 38 C.F.R. § 4.25 yields an evaluation of 80 percent for visual impairment. For the period since February 8, 2017, 30 percent is assigned for impairment of visual acuity, corresponding to no more than light perception in the right eye and 20/40 for the left eye under Diagnostic Code 6064. Moreover, during this period, 70 percent is assigned for impairment of visual filed, corresponding to remaining field of 15 degrees in the left eye with no light perception in the right eye under Diagnostic Codes 6080 and 6064. Combining these ratings as above yields an evaluation of 80 percent for visual impairment. Therefore, entitlement to an evaluation of 80 percent, but no higher, from July 1, 2009 to February 13, 2020 is granted, and an evaluation in excess of 90 percent from February 13, 2020 is denied, for nonproliferative diabetic retinopathy and glaucoma. Entitlement to an evaluation of 80 percent prior to July 1, 2009 is not warranted, for June 8, 2009 is the earliest documented date in the evidence for the Veteran's complaint of loss of vision in the right eye, where he reported the loss 3 days prior to the date. 2. SMC under 38 U.S.C. § 1114(k) 3. Higher level of compensation than SMC, 38 U.S.C. § 1114(k) Generally speaking, SMC provides for additional levels of compensation above the basic levels of compensation afforded by the schedular rating criteria in 38 C.F.R. Part 4. These additional levels of compensation are awarded for various types of losses or levels of impairment, due solely to service-connected disabilities, and for specific combinations of such impairments. The different types of SMC available are commonly referred to by their alphabetic designations, such as SMC(k), SMC(l), etc., which correspond to the paragraphs of 38 U.S.C. § 1114 which provides the statutory authority for SMC. These same paragraphs are codified in VA regulation predominantly at 38 C.F.R. § 3.350 (a) - (i). SMC(k) is warranted when the veteran has suffered blindness of one eye, having only light perception. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a). For the purposes of SMC(k), loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility. SMC (l), (m), and (n) provide for a higher level of compensation than SMC(k). SMC (l) is payable for blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. For the purpose of SMC (l), 5/200 visual acuity or less bilaterally qualifies for entitlement under 38 U.S.C. § 1114(l). However, evaluation of 5/200 based on acuity in excess of that degree but less than 10/200, does not qualify. Concentric contraction of the field of vision beyond 5 degrees in both eyes is the equivalent of 5/200 visual acuity. SMC (m) is warranted when the Veteran has suffered blindness in both eyes having only light perception, has suffered blindness in both eyes, or blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance. For the purpose of SMC (m), visual acuity 5/200 or less or the vision field reduced to 5 degree concentric contraction in both eyes qualifies for entitlement under 38 U.S.C. § 1114(m), and entitlement on account of need for regular aid and attendance will be determined on the facts in the individual case. SMC (n) is payable for blindness without light perception in both eyes. 38 U.S.C. § 1114 (l)(m)(n); 38 C.F.R. § 3.350 (c). Additionally, the SMC (s) rate is not applicable as there is no finding of a single disability, including individual unemployability with additional disabilities rated 60 percent of more, nor is the Veteran shown to be factually housebound. Here, the Veteran is entitled to SMC (k) for blindness in one eye, effective July 1, 2009 as explained in the section above for increased rating for bilateral eye disability. However, he is not entitled to higher compensation than SMC (k), for the evidence does not demonstrate that his left eye has visual acuity of 5/200 or less, light perception only, without light perception, or otherwise blind for the entire appeal period. Moreover, the evidence preponderates against finding that the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. Therefore, the claim for a higher compensation than SMC (k) is not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.